Thursday, July 28, 2011

Kirby Estate Loses Copyright Battle

I am sure that this judgment will be appealed, but a Federal court has ruled that the work Jack Kirby did for Marvel was "work-for-hire." This is despite the fact that the legal term was not part of the copyright law at the time Kirby co-created characters such as The Fantastic Four, The Hulk, The Silver Surfer, Thor, etc.

While I am sure that there is a celebration occurring in the Disney and Marvel boardrooms as a result of this ruling, it's a questionable victory. When the artists at Marvel realized that the company was not going to compensate them beyond paying them by the page, they simply stopped creating new characters. Image Comics exists because a group of artists realized they would never be fairly compensated for their work at Marvel and so they formed their own company. Marvel's treatment of their artists has been consistently bad. See this article on the recently deceased Gene Colan.

Corporate copyright is strangling creativity, not promoting it.

Kirby's case and the ongoing litigation regarding the Superman copyright are just more evidence that anyone who creates something without securing ownership is a chump. It's one thing to be hired onto an ongoing project or series to make a contribution, but quite another to originate an idea and only be paid a regular salary or a flat price.

Stop giving your ideas to corporations. Own them and control them. Or else there will be more Jack Kirbys, Jerry Siegels, Joe Shusters, and Gene Colans ad infinitum.

Why in hell should stockholders and executives who weren't born when the work was created be profiting from it when the people who created it and their heirs get nothing?

(For my earlier take on the benefits of ownership, go here. For Heidi MacDonald, a comics news columnist, on the Kirby decision go here. It's worth quoting her conclusion: "Don’t ever create characters for work for hire, no matter how much “back end” you’re promised. In this day and age there is NO excuse for giving up your creations. We may never see another Jack Kirby among us, but let his lessons stand, both the triumphs and the sadness." )

15 comments:

Forgive me if I'm mistaken, but isn't something like the Kirby Estate battle a thing of the past and serve more a history lesson than a warning? Doesn't it only show modern day artists and writers how far things have come and the painful price it cost?

Almost everything done under the Marvel or DC labels appears to be rehashing the characters of dead men, whereas any completely new sensations are published (in print or online) independently. Correct me if I'm wrong, but, in comics, everyone seems to have been aware of the fact that creating without ownership is a foolish route to take for some time.

There are still people whose life's ambition is work for the large comics companies. Beyond that, the problems that Kirby got into are still going on in TV, features and publishing. In some of those fields, there are at least guilds to provide some protection, but unfortunately the animation business isn't one of them.

My point is that people should stop pitching ideas for features and series and find ways to establish ownership prior to approaching corporations. John K. is no better off than Jack Kirby.

My point is that people should stop pitching ideas for features and series and find ways to establish ownership prior to approaching corporations.

But doesn't copyright law already provide for ownership as soon as an idea is put "in fixated form"?

When you successfully pitch an idea, isn't the fee that the studio acquires it for essentially what the value of rights to the work?

If people wish to retain control over their work, all they have to do is simply not sell the rights.

Unfortunately, the rather high costs of animation mean that more often than not, for individuals at least, a partner is needed, or, failing that, a studio to make the necessary investment. And in order for them to do that, they all want a piece of the pie (or the entire thing).

A novelist or playwright who sells film rights retains rights to the film or play. That's because it's a pre-existing work. J.K. Rowling still owns the rights to Harry Potter and if she wants to do new books, nobody can stop her and Warner Bros. (who make the Potter films) doesn't share in her profits.

It is theoretically possible with an unpublished work to retain certain rights, but because the work is untested in the marketplace, the creator has little leverage. It is far better to pitch by publishing on the web or some other means. If the work attracts people who want rights, it will be easier to retain some.

This whole thing is about leverage. It's tough enough for creators to get any, but too many creators are wholly ignorant of the leverage they may have or how to acquire some. They are so thrilled that somebody is going to produce their work that they sign away everything. Kirby et al. show how dangerous that can be.

Rather than anyone who creates something without securing ownership being a chump, there are often good reasons for doing exactly that. In the late 50s and still to-day, it takes capital to accomplish some things. Some people have accumulated capital and lack ideas; some people have ideas and lack capital. The terms of trade are determined by relative scarcities, not by some triumph of one pf the countless, often incoherent notions of fairness out there.

And while the term “work for hire” might not have had a clear legal definition in 1909, it was coined in an attempt to capture an idea already found in existing practice.

BTW, given the extent to which the characters in question “borrowed” heavily from the work of others — earlier Thors, for example — I have little respect for the wounded sense of alleged justice on the part of some of the combatants.

There are still people whose life's ambition is work for the large comics companies.

Those people should then have an idea of the history behind those companies and know what they're getting into. The world has changed drastically since Kirby at his peak, and if people are still ignorant enough to fall into the same traps, I have no sympathy for them.

My point is that people should stop pitching ideas for features and series and find ways to establish ownership prior to approaching corporations. John K. is no better off than Jack Kirby.

John K. has made millions off of Ren & Stimpy and has had name recognition and stardom since its premiere. He is much better off than Jack Kirby.

I hope that anyone who thinks that Kirby was treated fairly is treated in a similar fashion by his or her employer.

I can't infer anything like that from the posts here. It's outrageous, but it's legal. Again, more of a historical warning, but the heart of your argument, that cartooning types need to have a better head on his or her shoulder, is solid though.

We would all rather see the little people get the money than the corporations, but they're not always easy to deal with either. I can think of at least one important body of cartooning work that has been prevented from a legitimate release for decades because it's owned by a 'creative' who had nothing to do with the creation of said body of work.

You say: "My point is that people should stop pitching ideas for features and series and find ways to establish ownership prior to approaching corporations."

But, the truth is that pitching (even before one has leverage) is useful to the would-be creator. One needs to get practice presenting ideas. If someone has passion to get a TV series (or something similar off the ground) one of the best things he/she can do is to try and fail as many times as it takes. Each time the creator learns something from it.

The way to get leverage is not simply just to own your ideas. As Charles points out, any creator automatically does. Leverage is achieved by accomplishments, which show the ability to execute. Creators have to work on tangible achievements AND their ability as salespeople.

Out of curiosity, if the Kirby family did win the rights to the characters, what do you think they should have done with them? Continue the comics or just sit on them? Would the characters be in better shape?

These copyright battles are all about money. The characters created by Siegel, Shuster and Kirby have generated billions in the sales of comics, TV series, movies and merchandise. The people who created them and their heirs want a piece of the action.

The fans who are having nightmares about what might happen to their beloved characters have nothing to worry about. It's in the best interest of the heirs to leave the characters alone so that they continue to generate revenue.

Ironically, DC is about to revamp its whole line of comics and they will definitely be making changes to the character of Superman in order to avoid those elements that the courts have ruled are part of the copyright recovered by the Siegel estate. In other words, DC itself is mucking with Superman and potentially damaging the franchise more than the Siegels ever would, all in the name of maintaining total ownership.

I know peoples who ask me a lot if i will sold my comics to the public and general audience because they really appreciate it. The problem is it's very hard for me and i want to be sure that my work will be well presented and that my rights bring back.

Peoples needs to think two times before sold their creations. I realise today's cartoonings is more made by moneys than craft. But things have changed, conglomerates is bigger and larger than in the Kirby years.

It's a sad state of affairs when your creation births an empire or industry as is the case with Superman. Both Marvel and DC were nothing, before these creations came along, and the copyrights were obtained via questionable means at best, by older guys swindling kids. If authors of books retain their rights to characters, so should comic creators.

About Me

I've worked as an animator, writer, producer and director in TV animation for 29 years. I created the cgi series Monster By Mistake.
I hold a Masters degree from York University in Cinema and Media Studies and am currently teaching animation at Sheridan College.
I can be contacted at mark(dot)mayerson(at)sheridanc(dot)on(dot)ca.